60 Ga. App. 248 | Ga. Ct. App. | 1939
W. E. Allen was indicted for kidnapping, un- i der the Code, § 26-1602, which' declares: “Any person who shall forcibly, maliciously, or fraudulently lead, take, or carry away, ox-decoy or entice away, any child under the age of 18 years from its parent or guardian, or against his will, or without his consent, shall be guilty of kidnapping.” The jury returned a verdict of guilty, and the defendant excepted to the overruling of his motion for new trial.
The questions presented in the instant case are whether or not
Chancellor Kent established a rule with reference to common-law marriages in this country in 1809, and in 1827 published the second of his Commentaries (2 Com. 87), in which he said: “If the contract be made per verla de prcesenli, . . or if made per verla de futuro, and be followed by consummation, it amounts to a valid marriage . . and which the parties (being competent as to age and consent) can not dissolve, an-d it is equally binding as if made in facie ecclesice.” This language was adopted in this State in Askew v. Dupree, 30 Ga. 173, 178, 179, where it was said that if there was a mutual agreement between the parties to become husband and wife, and this agreement was followed by co
But the State contends the marriage was void on account of fraud in its procurement, and that the alleged wife was therefore
The court would recommend the statutory formalities of marriage, and that they be performed by such persons as are authorized by the statutory law of Georgia so to do, and does not commend the actions of this young couple, nor does it recommend the common-law form of marriage; it is too difficult to establish; injustices of various kinds might be done on account of the difficulties in proving such marriages, and the suspicion that more often surrounds them. A common-law wife is incompetent to testify against her common-law husband, under the Code, § 38-1604. The judge committed error in not excluding her as a witness.
Judgment reversed.